Divorce and Bankruptcy: What Happens First (And Why It Matters)

What comes first, divorce or bankruptcy? Finding yourself faced with deciding about one of these can be devastating, but when facing the prospect of both, the stress can be overwhelming. Divorce is often cited as a reason for filing bankruptcy. However, filing for divorce and bankruptcy simultaneously may not be a good idea. Before deciding about how to proceed with one or both you need to know the facts.

FACTORS TO CONSIDER BEFORE FILING DIVORCE AND BANKRUPTCY.

One of the biggest factors in making the decision about when to file divorce and bankruptcy is the type of bankruptcy you anticipate filing.

Type of Bankruptcy:

  • Chapter 7 (liquidation) bankruptcy can be completed in several months. If you qualify you and your spouse can file together, have your debts discharged and then proceed with the divorce.
  • Chapter 13 (reorganization) bankruptcy may not be good to file before the divorce. This type of bankruptcy can last several years and if divorce happens during this time you will have to go through an additional process of separating or closing the bankruptcy before you can get divorced.

Income, Debts, and Assets:

If your spouse is hostile to you and your financial interest filing bankruptcy before divorce may be more harmful to you than good. If you and your spouse are on friendly terms filing for bankruptcy first may work. This is because:

  • Filing for bankruptcy allows you to share filing fees, legal expenses, and a bankruptcy attorney. However, if your combined income is too high you may not be able to file under Chapter 7.
  • Filing together allows for all debts to be addressed under one proceeding.
  • Jointly held debt can be eliminated, and your exemption amounts may be increased. On this matter, it is best to consult an attorney to get council about the exemption laws in your district.
  • Additionally, contracts like mortgages that are more than the value of the home and car loans can be dissolved.

CAN BANKRUPTCY AFFECT YOUR DIVORCE PROCEEDINGS?

Having both legal matters proceeding at the same time can delay a divorce and any distribution of assets and liabilities. The courts will want bankruptcy to be completed before the divorce can be finalized. In a bankruptcy proceeding, the debts are tied to each person’s name and social security number so this will affect how any liabilities are handled in a divorce.

Why Is It Important to File Bankruptcy First?

Once bankruptcy is filed, either Chapter 7 or Chapter 13, an automatic stay “freezes” your property and assets. The bankruptcy court then sorts through what debts are owed and what asset is available to pay these debts. The freeze will stay in effect throughout the bankruptcy. In a divorce, a major part of the proceedings is to divide the marital assets. If these assets are tied up in bankruptcy, the divorce court cannot make any asset division decisions. This leads to unnecessary emotional drain and wasting time.

Are There Exception to Filing for Bankruptcy First?

Reasons to wait to file bankruptcy until after divorce:

  • You and your spouse’s joint income is too high to qualify under Chapter 7 rules.
  • One spouse earns most of the money so the other spouse may qualify individually under Chapter 7 after divorce and avoid any repayment plans.
  • After divorce, both of you may qualify for Chapter 7.
  • Certain assets such as a home can move to one spouse and this protects the other spouse from creditors.
  • Filing divorce first gives a clearer picture of funds available for any type of support orders.

NOT ALL DEBTS WILL BE DISCHARGED BY BANKRUPTCY.

If you decide to proceed under the Chapter 7 bankruptcy rules, you need to know that not all your debts will be discharged. Certain debts can be determined to be “non-dischargeable” and these will not be forgiven in bankruptcy court. Types of debts that you will still be responsible to pay are:

  • Child support.
  • Spousal support.
  • Student loans.
  • Court penalties and fines.
  • Attorney fees from support and custody cases.
  • Other government agency fines.

Dischargeable debts under Chapter 7 are considered a “privilege” not necessarily a right. Because of this, the debtors must follow the rules laid out in the Bankruptcy Code. If these rules are not followed, the debtor risks denial of debt discharge. To avoid denial make sure to:

  • Proved all requested tax documents
  • Do not try to defraud creditors by hiding property.
  • Never destroy any financial records.
  • Do not lie in bankruptcy documents or court.
  • Avoid violating a court order.
  • All finish mandatory credit counseling.

WHAT TO KNOW IF YOU DECIDE TO FILE BANKRUPTCY DURING DIVORCE.

In an amicable divorce often, the spouse will share an attorney. If that is true in your case and you decide to file bankruptcy during divorce you will have to hire a new divorce attorney. Attorneys are barred from representing clients that have any type of conflicting interest so each party in a divorce and bankruptcy need their own attorney. This will create an extra burden for all parties because once the parties in the proceedings find new attorneys they need to be updated about the case. Additionally, there will be added legal fees and costs that add additional hardship to the spouses.

Whatever the reason that you are deciding to file for divorce and bankruptcy always consult an attorney. Both processes can be extremely complicated, and they will be stressful. Visions of starting over in your new life are wonderful but if the details of your court filings are not handled appropriately your new life may not be so grand. Know the facts and make informed decisions.

WHY FLORIDA LAW ADVISORS ARE THE BEST FOR YOU.

You won’t find any better attorneys than those at Florida Law Advisers, P.A. Florida Law Advisers are nationally and locally recognized for their excellent legal counsel. The firm has been featured in numerous publications throughout the country and has been rated as A+ by the Better Business Bureau. The goal at Florida Legal Advisors is to “deliver high-quality legal representation at a reasonable cost.”

Contact us today and schedule a confidential consultation with one of our divorce or bankruptcy attorneys. The first consultation is always no cost to you. We will carefully review your case and help you to determine the best course of action for your unique circumstance.